Common Law - business - Assignment Example

Respondeat superior and quifacit per alium facit per se are the two principles that vicarious liability is based on. According to respondeat superior, a superior is responsible for the acts committed by his subordinates. Quifacit per alium facit per se means that if someone does something through another, then he does it through himself (Giliker, 2010). The rules that the court applies in deciding if the blame for a tortuous act can be shifted from the employee to the employer are: Control Test: Was the employee under the control of the employer when the tortuous act was committed?

Control is the key characteristic that the court will consider. The employer must have the control and the ability to exert authority over the employee. That is the employer controls the actions of the employee’s work. He must instruct the employee on what to work on and how to work on. Control, authority and direction are necessary liability conditions (Giliker, 2010). Employment Test: An employer will only be liable to acts of employees and not independent contractor. That is, employees have a ‘contract of service’ while an independent contractor will have a “contract for service’.

Course of employment: Employer is liable only if the tort was committed in the course of the employment. That is the blame can be shifted from the employee to the employer if the tortuous act was authorised by the employer or the authorised act was done in a wrongful way (Smith & Thomas, 2007). 3b. Occupier’s liability act of 1957: This act deals with the liability of the occupier to the lawful visitors. The act treats all visitors as a single entity irrespective of them being invitees, contractors and licensees.

It is not applicable to illegal visitors such as trespassers. It imposes duty of care on the occupier. According to the act, an occupier is one who has reasonable control on the premises and must have had the ability to avoid or prevent the danger. Common Duty of Care: An occupier owes a common duty of care to all legal visitors wherein care must be taken by the occupier to ensure that the visitor is safe in using the premises for which he was invited under all reasonable circumstances (Harpwood, 2008).

Warnings: Occupiers are not held liable if harm is caused to a visitor if he/she had been warned about the danger. The visitor under all circumstances must be able to avoid the danger based on warnings. But apart from warnings extra care must be taken if the danger is unusual or extreme (Harpwood, 2000). Children and professional exercising their duty: Exceptions are made to children and persons who are exercising a skill or trade. With children, the occupier must ensure that children are safe considering the fact they are less careful than adults.

For Example, in Glasgow Corpn v Taylor (1922) a child died after eating poisonous berries from a bush in a public park. The bush was not fenced and hence did not take care in safeguarding children. The occupiers were held responsible (Harpwood, 2000). With persons exercising their duties the occupier can expect the person to be aware of special risks associated with the skill. For example, an electrician repairing an electric socket must be aware of the danger of dealing with electrical equipment and must be careful in dealing with it.

Independent Contractors: The occupier cannot be held liable if the danger or harm is caused by the work of an independent contractor